By James Feron
Originally published in The New York Times, July 22, 1988

WHITE PLAINS, July 21 — A pregnant woman has been ordered by a judge to surrender the baby at birth because she has abused or neglected seven previous children.

The judge, Louis A. Barone of Westchester Family Court, declared last Friday that "the child in utero is a neglected child." He ordered it removed from the mother immediately after birth, which is expected within the next two weeks, and turned over to the County Department of Social Services.

Ricki Feldman, a Senior Assistant County Attorney, said the child would be sent to a foster home pending a dispositional hearing.

At the hearing, Judge Barone said, the mother, identified as Deborah B., "will have an opportunity to present evidence of her ability to parent the child."

'Unusual, but Not Unique'

Rachael Pine, a staff attorney in the Reproductive Freedom Project of the American Civil Liberties Union, said the judge's action was unconstitutional in that "New York State's statute dealing with abuse and neglect does not apply to fetuses, but to living children."

The judge, in an interview, said the case was "unusual, but not unique." He said that six of the woman's seven children had been freed for adoption by the Family Court because she had physically or mentally abused them. The father has been given custody of the seventh child, he said.

Judge Barone said the burden of proof would normally be on the county to show why it should take custody of the baby. But because of the mother's record of abuse, the burden shifts to her, to convince the court that she can care for the newborn child.

Andrew Vachss, an expert on child abuse cases who is representing the fetus, said that "once you've made a prima-facie case proving a pattern of abuse, the burden shifts to the mother because without that shifting, you'd have to let her abuse each child, one after the other, before intervening."

Deborah B. has been described by those involved in the case as a presentable, well-spoken, unmarried woman in her 30s whose children range in age from 4 to 15 years. She is on welfare and living in a Westchester motel.

Lawyer Blames Fathers

Jeffrey R. Salant, her court-assigned lawyer, said that because of Family Court intervention, she has not had a child live with her for four years "and should be allowed to raise the baby with the help of a day-care worker." He asserted that some of the abuse ascribed to the mother had been done by the fathers of the children.

Mr. Vachss, who said he became involved in the case because he had been assigned by the court to defend one of the woman's children in a previous case, argued that "as recently as two months ago she had to relinquish all parental rights to two of her children because the court said she was unable to care for them."

Judge Barone said that the mother had received counseling and other services, but that the abuse had continued. He said the children had suffered broken limbs, among other injuries.

Mr. Salant said: "Deborah wants to do the right thing. It's a sociological problem."

No 'Trial Period'

Judge Barone, in his ruling, said the mother "has not improved her situation by one iota, in spite of the numerous and diligent assistance extended to her by the Department of Social Services.

"The court's primary concern is the safety and well-being of the unborn child," Judge Barone said in his ruling. "To submit the child to a 'trial period' with its mother in the hope that it will not be harmed is not a chance that this court wishes to take. If this court errs, it will be on the side of safety."

Ms. Pine, of the Civil Liberties Union, said that "the general precedent in the area of reproductive rights establishes that it is improper for states to attempt to give the fetus the status of personhood for the purpose of legislation."